Threat to Article 35(A): Inadequacies of J&K’s Response

In an interview with Baba Tamim, senior advocate Tassaduq Hussain explains how J&K government could have used examples from the US and Australia to beef up its case.

Can you begin with telling us briefly about the accession and its relation with Article 370 and Article 35A?

On 26 October 1947, the then ruler of Jammu and Kashmir acceded to India. An Instrument of Accession was signed in which he ceded three subjects—defence, foreign affairs and the communication—to the government of India. Rest of the subjects ware retained by the Maharaja. In other words, the legal view in Kashmir is that the Maharaja retained the internal sovereignty.

The Maharaja did not abnegate his throne soon after the accession. So the entire anti-monarchy struggle of National conference (NC) had become futile. It had failed miserably. Maharaja continued to rule over the region of Jammu and Kashmir, while he stayed in Mumbai. He appointed his 17-year-old son Karan Singh as the regent. Karan, as regent, convoked the J&K Constituent Assembly. Around the same time, the Indian constitution was also drafted and a provision called Article 370 was added to it. This empowered the president of India to extend any provision of the Indian constitution to the state of J&K with the concurrence of the Constituent Assembly and the government of J&K. Two provisions were extended to J&K. First, Article 1, which declared that Kashmir was an integral part of the Union of India. This was significant because Article 1 of Indian constitution employed phraseology “Union of India”, which showed the intention of the government of India to merge Kashmir with India. Nobody in the government ever questioned extending the Article 1 to the state of Jammu and Kashmir. This Article was extended on the same day the Article 370 of the constitution of India was extended.

When the Indian constitution came into force, both these articles were extended to the J&K state with the consent of the Constituent Assembly, which was in session. The constitution of the J&K was being framed around the same time. In this backdrop, we must take into consideration certain endeavors that were made by the Union of India. One of the most significant provisions was Article 370 of the Constitution of India, which empowered the president of India to extend any provision of the Indian constitution to J&K, even though it is not mentioned in the Instrument of Accession. The Instrument of Accession specifically mentioned only three subjects namely defence, communication and foreign affairs.
Article 370 also empowered the president of India to extend other provisions of Indian constitution to the state of J&K under the condition that the consent of state assembly and the government shall be obtained.

What is the historical significance of Article 35A?

By 9 August 1953 Sheikh Abdullah had second thoughts about the consensus that the concerned parties reached during Delhi Agreement parleys. He was deposed and a new government under Bakshi Ghulam Mohammad, Sheikh’s deputy prime minister, was planted on 9 August 1953. On 14 May 1954, a significant date, Article 35A of the Indian Constitution along with all other Articles and fundamental rights enshrined in the Indian constitution were extended to the state of Jammu and Kashmir by Constitution Application Order. This, at that time, was done to reassure the people of Kashmir on the points that: 1) J&K state legislature/Constituent Assembly would define the permanent residents of the state. 2) J&K Constituent Assembly would also provide special rights and privileges to those permanent residents. Only the state residents as defined in the constitution of J&K alone would be able retain immovable property within the state of J&K. This was a significant provision since it provided insurance and assurance to the people of J&K, that the distinct, discreet and individual character of the Kashmiri autonomous polity would not be interfered with.

How do you view the state affidavit filed in response to the petitions challenging the Article 35A in the Supreme Court?

It seems that the Center and the State are not in agreement with each other as far as the defence of Article 35A of the Indian constitution is concerned. The council of the J&K state is completely remised and they have filed a very perfunctory affidavit in the Supreme Court. This shows that they have not pushed the argument that shows the Supreme Court of India has no jurisdiction now to again re-decide the constitutional validity of Article 35A. The position is very clear, this point can only be appreciated if one takes into consideration that earlier in Sampath Prakash case, Supreme Court of India itself declared unequivocally that the provisions of the Article 35A of the constitution of India are valid.

Do you think the state could have handled the situation in a better way?

The state should have drawn lessons from the judgment of the United States Supreme Court, whereby a dispute was settled between the US Federal government and the Indian tribes seeking their civil rights. A writ was filed in the US Supreme Court and the panel of five judges ruled that the question had been already decided and therefore was barred by the principals of Res Judicata (the matter has already been adjudged) and constructive Res Judicata and hence the court has no jurisdiction to again reexamine or even question it.
If this very principle is applied, then Indian Supreme Court lacks jurisdiction. This question had been earlier decided in Sampath Prakash case, that Article 35A is valid. And the government of Jammu and Kashmir was a party to that litigation besides the Union of India.

What role do you think the people of Jammu and Kashmir can play if Article 35A is revoked?

It’s a sorry state of affairs. The State Council is absolutely unaware about the judgment of the United States Supreme Court, which directly covers the point. Aside from this fact, the basic issue is that if a judgment is thrust upon the people against their wishes, then the same situation will arise which arose in Dred Scott’s case. This means, although, the law declared by the Supreme Court of India is binding upon all authorities within the territory of India, yet people have a right to revolt.

So, a non-violent mass revolt can be an apt reply if the court overrules its earlier judgments and declares Article 35A as eroded. In these circumstances a further plea, which should have been taken is that the abrogation of Article 35A is a political question.

In Australia when such a situation arose the Australian legislature/parliament didn’t at all amend the constitution. They didn’t either utilise the medium of the court institution but a referendum was called. The Australian case has, in fact, been cited by a judge of the Supreme Court of India, in a judgment reported in 2015 Volume 5, recent apex judgment, page 351.

Having made a reference to this Australian practice, it is hoped that while hearing the writ against Article 35A, the five judge bench of the Supreme Court of India will not omit to notice its own observations regarding the Australian practice. After all, Australia is a democratic country.

Australia and Canada are two countries, which also had the benefits of British rule and their constitution also evolved on the pattern of the British practice. So, that case is identical with the constitutional position obtaining in India because India voluntarily has opted to follow Westminster style of government, and is a democracy based on the principles of democratic rule as observed in England. Keeping this in view, the state affidavit should have, at least, made a mention of this. So, the case has already evoked public controversy and has the potential to even create a civil strife of an enduring nature.

What do you think Rajnath Singh’s “permanent solution” refers to?

“Permanent solution” touted by Rajnath Singh is being interpreted by the intellectual circles in the Valley as complete integration of J&K state with the Union of India. The complete physical elimination of the Kashmiri armed youth, who now have been given two choices of either to surrender or to get annihilated. The real issue is to deal with Pakistan basically, which is “difficult” because of the China factor. For the time being, the Pakistan-India War is not practically possible, but an era of Cold War between the two is in the offing.